Federal Courts and Nominations

Upcoming cases will be instructive about Jackson’s judicial approach

WASHINGTON — Judge Ketanji Brown Jackson won Senate confirmation on Thursday to serve on the U.S. Supreme Court, and already she has nearly a dozen cases waiting for her that will give early glimpses of her approach to her new job as an associate justice.

The docket she’ll take on when she joins the court after Justice Stephen Breyer steps down this summer includes blockbuster cases on racial effects of gerrymandering, religious objections to same-sex marriages, and whether Andy Warhol’s work is art.

But Jackson, the first Black woman justice, is not expected to sit in on the term’s biggest case — on race-conscious admissions policies of Harvard and University of North Carolina — after she told senators she plans to step aside because she’s on Harvard’s Board of Overseers.

She will join the court this summer, but won’t begin hearing cases until the Supreme Court convenes on Oct. 3 for its 2022-23 term, to which justices are still adding cases.

“The current term we’re in has huge, important cases. But the next term also is, even at this point, set up to have huge questions involving racial equality and equal citizenship already on the docket,” said Elizabeth Wydra, president of the Constitutional Accountability Center, a liberal think tank, law firm and action center.

“And then to add to that list, I think that whatever the court decides in the abortion cases this term will loom over next term as well,” Wydra told Newsday. “Abortion will continue to be a defining issue for the court that Justice Jackson joins.”

Jackson, 51, will join a Supreme Court that has been remaking itself with four new justices in the past five years and with a shift to the right with a 6-3 conservative majority.

A former clerk to Breyer, Jackson is expected to join Justices Sonia Sotomayor and Elena Kagan to form the court’s all-women liberal bloc that provides a sharp contrast to the five men and one woman in the conservative bloc.

In her Senate hearings, Republicans criticized her as a liberal who would issue results-oriented decisions. Democrats defended her as a fair-minded and diligent judge who rules based on the facts, the law and precedents.

Yet Jackson will be watched for her questions in hearings, her reasoning in her decisions and her writing of opinions after she told senators she has no judicial philosophy and will employ originalist and textualist methods — the tools of conservative justices.

And she’ll be scrutinized on how she interacts with other justices, especially conservative Clarence Thomas, the second Black jurist on the court.

Curt Levey, president of the conservative Committee for Justice, said he’ll watch where Jackson fits in as a liberal justice, closer to the center like Breyer or to the left like Sotomayor.

Wydra said, “I think that she’s going to be her own justice.”

Either way, the proof will begin to emerge in her first cases, which include arguments on the death penalty, the Clean Water Act, the federal court’s power, veterans’ disability benefits, Indian child placements and a California law on humane treatment of animals.

She might even be able to rule on the constitutional issues in the University of North Carolina race-conscious admissions program if justices agree to split it from the Harvard case.

The most attention will be on cases in the center of the culture war fights.

Among them is a case set for the next term based on a lawsuit charging Alabama’s state legislature with racial gerrymandering and a Voting Rights Act Section 2 violation for newly drawn congressional district lines creating one majority Black district instead of two.

The Supreme Court allowed Alabama to use the map for 2022 elections but said it would hear arguments this fall to decide it’s use in future elections.

Another case focuses on the clash between religious freedom and nondiscrimination laws that arose when a designer refused to create websites for same-sex marriages because they’re inconsistent with her faith — a violation of Colorado’s Anti-Discrimination Act.

And then there’s the New York case in which a photographer sued for copyright violation over a photo of the musician Prince that Andy Warhol used to create a new silk-screen.

A district judge ruled Warhol’s silk-screen fell within what’s called “fair use” in copyright law and had transformed the photo in an iconic “Warhol” creation. But the Second Circuit said the district judge “should not assume the role of an art critic” and reversed the case.

Since justices don’t usually vote along ideological lines on intellectual property cases, her decision could be interesting, Levey said.

“Who knows,” he said, “maybe she’ll even be an improvement over Breyer for those looking for strong intellectual property enforcement.”

 

 

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